Bagadiong vs Gonzales (Bagadiong vs De Guzman in the syllabus) G.R. No. L-25966 December 28, 1979 FERMIN A.

BAGADIONG, petitioner, -versusHON. FELICIANO S. GONZALES, Judge of the Court of First Instance of Catanduanes, CLEMENTE ABUNDO, RAFAEL VILLANLUNA and FRANCISCO A. PERFECTO, respondents. This is a special civil action for certiorari by the petitioner to annul the order of respondent Judge of the CFI of Catanduanes in Civil Case No. 546. FACTS: On January 12, 1966, the herein plaintiffs-respondents filed the civil case for prohibition with preliminary prohibitory and mandatory injunction with the CFI of Catanduanes against defendants Jorge V. Almojuela, Dominador Monjardin, FERMIN A. BAGADIONG (the herein petitioner) and Armando Ala who are the Governor, Vice Governor, Provincial Treasurer and Provincial Auditor of the Province of Catanduanes, respectively. In the said petition for injunction, it is alleged that defendants, including the herein petitioner (BAGADIONG), are authorizing, approving and effecting the disbursements of public funds of the province based on the annual provincial budget that, allegedly, was not duly approved by the Provincial Board since plaintiffs-respondents did not participate in the deliberation of the same. On January 14, 1966, a writ of preliminary injunction was issued by the respondent Judge against the defendants commanding them to desist from authorizing and making any further disbursements of funds from the budget in question. A complaint in intervention was filed by herein respondent PERFECTO praying, among others, that all original parties to the case be ordered to refund the province all moneys appropriated under the falsified budget; and that all the said original parties be condemned to pay an amount equal to all disbursements under the falsified budget, by way of exemplary damages. On January 31, 1966, the respondent judge denied the motion to vacate and lift the writ of preliminary injunction. When the case was called for trial, counsel for plaintiffs called one of the defendants, the herein petitioner, BAGADIONG, to the witness stand as one of the witnesses for the plaintiffs. Counsel for the defendants raised the objection that the said party cannot be called as a witness for the plaintiffs because it would violate his constitutional right against self-incrimination. On the other hand, counsel for the plaintiffs contended that since this is a purely civil action, the right against self-incrimination is not involved, and if any testimony elicited from the herein petitioner would tend to incriminate himself, there would be ample time for the herein petitioner to raise the proper objection. The respondent Judge sided with the plaintiffs. After a verbal motion to reconsider the aforesaid order was denied by the respondent Judge, petitioner filed the instant petition for certiorari. In its memorandum, the BAGADIONG contends that the provision of the Rules of Court which authorizes a party to call the adverse party to the witness stand applies only to purely civil actions where the defendant does not run the risk of being prosecuted for any offense. Likewise, the petitioner asserts that the right against self-incrimination can only be claimed when the incriminatory question is being propounded and not before, by a mere witness, but not by a party defendant, as in the case at bar. ISSUE: WON petitioner can be compelled to testify as a witness for respondents and WON such violates his right against selfincrimination. RULING: There is no legal impediment for a party to call any of the adverse parties to be his witness, as clearly provided in Section 6, Rule 132 of the Rules of Court. It is (only) in a criminal case where the accused may not be compelled to testify. But while the constitutional guaranty against self-incrimination protects a person in ALL types of cases, said privilege, in proceedings other than a criminal case

against him who invokes it, is considered an option to refuse to answer incriminating question, and not a prohibition of inquiry. As aptly stated by this Court in the case of Gonzales vs. Secretary of Labor, et al: Except in criminal cases, there in no rule prohibiting a party litigant form utilizing his adversary as a witness. As a matter of fact, Section 83 of Rule 123, Rules of Court, expressly authorizes a party to call an adverse party to the witness stand and interrogate him. This rule is, of course, subject to the constitutional injunction not to compel any person to testify against himself. But it is established that the privilege against self-incrimination must be invoked at the proper time, and the proper time to invoke it is when a question calling for a criminating answer is propounded. This has to be so, because before a question is asked there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify "cannot decline to appear, nor can he decline to be sworn as a witness" and "no claim of privilege can be made until a question calling for a criminating answer is asked; at that time, and generally speaking, at that time only, the claim of privilege may properly be imposed." (Emphasis supplied). In the instant case, petitioner invoked the privilege even prior to any question being propounded, and simply declined to take the witness stand. In the above-cited Gonzales case, it will be noted that the privilege against self-incrimination must be invoked when a question calling for an incriminating answer is propounded (asked) because before a question is asked, there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. Moreover, the herein petitioner was being directed to take the stand, not in a criminal case where he is an accused but in civil action. This is expressly permitted by Section 6, Rule 132 of the Rules of Court which authorizes a party to call any adverse party as his witness. In the later case of Suarez v. Tengco, 2 SCRA 71, 73-74, the following was stated: Here, petitioner invoked the privilege even prior to any question, and simply declined to take the witness stand. Note that in the Gonzales case, above-cited, the adverse party was directed to take the witness stand in proceedings to investigate an alleged failure to pay overtime compensation, which, under corresponding special laws, carries a penal sanction. Here, petitioner was being directed to take the stand, not in a criminal case where he is an accused, but in an independent civil action which, although arising from the same facts involved in a criminal case pending before the same court, is still be regarded by law as an "entirely separate and distinct" action, governed by a corresponding different set of rules (Civil Code of the Phil., Art. 2177). The almost exact similarity of the instant case and the case just cited leaves no room for doubt, and there is complete justification therefore that the same ruling must be applied here. WHEREFORE, the instant petition to prohibit the respondent judge from directing petitioner to take the witness stand and testify is denied, without prejudice to petitioner's properly invoking the guaranty against self-incrimination when questions are propounded to him on the stand.